Saturday, June 27, 2015

Freedom, Rings

Unless you've been hiding in a rainbow-proof cave, you've heard by now that yesterday, the U.S. Supreme Court affirmed the nationwide right to marriage equality for gay and lesbian people. The case of Obergefell v. Hodges will go down in history, much like Loving v. Virginia, the case which in 1967 struck down bans on interracial marriage.

But there's a key difference between the two cases. The correctness of Loving was manifest even at that time: the verdict from the Court was unanimous. The majority opinion in Obergefell, in sharp contrast, was supported by only 5 of the 9 justices. The other 4 justices offered up not just one dissent, but one dissent each (and each variously endorsed by other dissenters). And each is a flawed bit of rhetoric.

At the risk of seeming ungrateful, I'll extend that criticism to the majority opinion itself, authored (as was expected) by Anthony Kennedy. It is, without a doubt, peppered with stirring flourishes. The closing in particular is a powerful piece of writing:
No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.   In forming a marital union, two people become something greater than once they were.  As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death.  It would misunderstand these men and women to say they disrespect the idea of marriage.  Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves.  Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions.  They ask for equal dignity in the eyes of the law.  The Constitution grants them that right.
But in between lofty passages of the Obergefell ruling, there's not nearly as much legal reasoning as there ought to be. I had similar criticisms of his Windsor ruling, though it turned out that many lower court judges would later read between its lines to infer the correct answer to the larger marriage question. But it's exactly what all those judges wrote -- dozens of district court rulings, and several circuit court rulings -- that makes Kennedy's work seem somewhat lacking by comparison.

If you read any of the opinions from the lower courts in the last two years from the marriage cases leading up to this (and I have -- every one of them), you'll find many examples of judges who articulated the argument more clearly than Kennedy. On the more technical side, there were rulings like Judge Shelby's at the district level in the Utah case, Kitchen v. Herbert -- which systematically refuted every argument made by the other side. Or on the more philosophical side, Judge Posner's ruling for the Seventh Circuit pithily detailed the injustice of the situation, and was loaded with brilliant rhetorical flourishes for the layman. ("Go figure.")

I guess I'd expect a Justice for the Highest Court in the Land to do better. But maybe everything had already been said as well as it could be. In any case, Kennedy's Obergefell ruling is a bit like swiss cheese on the substance, and the dissents all pounce on this. But of course, the dissents are all even worse in their own ways, and only able to get away with being worse because they're not actually engaging the arguments -- they're simply crossing verbal swords with Kennedy. The result is four dissents that seem even less worthy (far less worthy) of the Supreme Court.

Chief Justice Roberts' dissent tries to cast this ruling as having no basis in the Constitution, and compares what the majority has done to the "Lochner era" of the Supreme Court. You can read all about that case and the years that followed in The Case Against the Supreme Court (which I recommend). Suffice it to say that Lochner is generally thought to be right behind Dred Scott (defending slavery) and Korematsu (upholding World War II internment of Japanese Americans) as one of the worst and wrongly decided cases in Supreme Court history. Roberts is making a bold claim to compare Lochner to this same-sex marriage ruling.

And moreover, he's completely ignoring why Lochner is considered to be so wrong. Lochner involved laws established to protect employees at a bakery from inhumane working conditions. The laws were designed to equalize the power balance between the employees (who had to take what job they could get) and the employers (who had no reason to treat their employees well). The Supreme Court in that case crafted an upside-down ruling that would boggle even the Mad Hatter, striking down the laws as unconstitutional infringement of the weak employees' "right" to take a worse deal if they chose to.

In short, Lochner is reviled in legal circles not because it represents judicial overreach, but because it preserved power for the powerful. Roberts' now cries "judicial overreach" without awareness of any irony, after a decade-long string of cases which have cemented power for corporations and the wealthy -- the real repeat of the real travesty of Lochner.

And the dissents only get worse from there. Scalia uses his to flog his pet cause of constitutional originalism -- the idea that people today should be bound by the conceptions of those who wrote laws centuries ago. And his irony detector is even more damaged than Roberts'. He scolds Kennedy for writing an opinion designed to be memorable, when it's he himself who always peppers his opinions with dollar words and bon mots.

Alito wastes a few pages quoting his own dissent from Windsor, and arguing that the real injustice here is that he and others who believe as he does may be branded as bigots. His core argument of course being the very definition of bigotry: "I have nothing against you, I just sincerely believe that you don't deserve the same rights I have."

Worst of all is Clarence Thomas, who pretends that government can neither bestow nor deprive dignity on an individual. He believes he has made this point perfectly with this shocking declaration:
Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them.
If you don't believe slavery or internment are deprivations of dignity and humanity, it seems pretty clear you don't understand a thing about dignity and humanity.

Where have I been going with this lengthy, meandering post? (And kudos to you, if you're still here.) Just this. Yesterday, four Supreme Court judges made utter asses of themselves, and committed their dumbassery to print for all time. And even Kennedy, who at least got the outcome right, revealed himself (in my view) as less knowledgeable and less articulate than dozens of judges on lower courts.

My point: it's time to refresh the Supreme Court. Of course, there's no scheduled mechanism for this. Only when a Justice retires or dies in office does the sitting president then get to nominate a replacement, subject to approval by the Senate.

Think about this next time you're voting for your Senator and for the President. Choose accordingly.

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